Welcome to our webpage on SLAPPs directed against anonymous Internet posters. A SLAPP is a Strategic Lawsuit Against Public Participation.
Many companies are now suing individuals who post anonymous messages on Internet financial message boards or in online chat rooms. While some of these lawsuits may have merit, others are merely retaliatory SLAPPs — attempts by the companies to silence their anonymous critics on the boards and intimidate other Internet users to keep their criticisms to themselves.
Characteristics of Message Board SLAPPs (back to top)
If a company is suing you for your online speech, you may have been SLAPPed. A message board SLAPP shares characteristics typical of SLAPPs:
Defendants' Speech. The SLAPP is based on the defendants' free speech activity — online speech, in this case. The statement posted on the message board is generally the sole basis for the lawsuit.
No Legal Merit. As a lawsuit, the SLAPP has no legal merit. It masquerades as an ordinary civil lawsuit, frequently based on claims such as defamation, breach of contract, and/or trade secret violations.
Chilling Effect. The SLAPP has a "chilling effect." Rather than spend money on legal fees to fight the SLAPP, the defendants may find it easier to remain silent. The free give-and-take of discussion on the boards is also affected. Because users may fear being sued if they criticize the company, they may tone down their criticism or say nothing at all.
A message board SLAPP also has some characteristics that are not common to other SLAPPs:
"Doe" Defendants. The lawsuit usually names the defendants as "John Does" or "Jane Does." Sometimes the complaint names the defendants by their screen names. While many other lawsuits include Does among the defendants, message boards SLAPPs generally name only Doe defendants.
Destroying Anonymity. One of the first steps the plaintiff takes is the attempt to discover the identity of the Internet posters. Sometimes, that is the only step the plaintiff takes. The SLAPP complaint is often vague, and may not even quote the defendants' online statements, or even identify these statements by date or by post number.
Typically, the plaintiff attempts to subpoena records from the Internet service provider. Yahoo! has an enlightened policy regarding the privacy of its registered users: Yahoo! e-mails a notice to a user informing him or her that someone is seeking, through the courts, to discover the user's identity, and that Yahoo! will not act for 15 days, during which time the user may take legal action to try preserve his or her anonymity. Other service providers may not have such policies.
See the case of Doe v. Cahill (PDF file) in which the Supreme Court of Delaware on Oct. 5, 2005 reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. (News report: Court Rules in Favor of Anonymous Blogger)
"Insiders," "Employees," or "Former Employees." Many of these lawsuits allege that the anonymous posters are employees or former employees who are violating confidentiality or trade secret agreements, or insiders divulging confidential information. Thus, along with (or instead of) the typical defamation claim, the company may sue for breach of contract, breach of fiduciary duty, or trade secret misappropriation.
There may be no reason for the company to believe that the anonymous online speaker is an employee or insider, because the defendant based his or her statements on publicly available information or is merely stating an opinion. Or the company may be using the lawsuit to discover whether any posters are employees, so it can retaliate against them.
Allegations About Stock Prices. Some of these lawsuits also allege that the anonymous posters are attempting to manipulate the company's stock prices. But in a message board SLAPP, the anonymous poster/defendant may simply be an investor or potential investor who is merely stating his or her opinion about the company or its management.
Your Right to Speak Anonymously (back to top)
The Internet is a great forum for the anonymous speaker. Anonymity contributes to the free-wheeling exchange of opinions and information on the boards. Companies that file SLAPPs are using the courts to intimidate Internet users into silence, thus transforming these free exchanges into one-sided discussions devoid of criticism.
Your ability to speak anonymously online may be protected by the constitutional right of free speech, whether under the federal First Amendment or a state constitution. First Amendment protection is not absolute. But the United States Supreme Court has recognized that a speaker's decision to remain anonymous is "an aspect of the freedom of speech protected by the First Amendment" (McIntyre v. Ohio Elections Comm'n. (1995) 514 U.S. 334, 342) and that online speech has as much First Amendment protection as offline speech. (Reno v. ACLU (1997) 521 U.S. 844, 868.)
In California, the right to speak anonymously springs from both the First Amendment and the right of privacy in the California constitution. (See, e.g., Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541, which held that the plaintiff may not use discovery procedures to obtain identities of anonymous individuals who paid for newspaper ads criticizing the plaintiff.)
Immunity for Reposting (back to top)
The courts have held that Section 230 of the Communications Decency Act (47 USC § 230) provides that users and providers of interactive computer services, including the Internet, are immune from civil liability for publishing on the Internet material written by someone else. This was first established by the federal Fourth Circuit Court of Appeals in Zeran v. AOL in 1997. In Barrett v. Rosenthal (2006), the California Supreme Court agreed with this. In Batzel v. Smith (2002) the federal Ninth Circuit Court of Appeals (in California) held that an Internet reposter is immune from liability if a reasonable person would believe that the reposted material was given to him/her for republication on the Internet.
Defending Yourself (back to top)
If you are being sued for your online statements, find out whether there is a state anti-SLAPP law that applies to your case. See our page for other states. Also see CASP's Survival Guide for SLAPP Targets, which provides suggestions on how to prepare for and defend yourself against a SLAPP.
If the lawsuit was filed in California, it would be covered by California's anti-SLAPP law. In three California cases, complaints for defamation arising from Internet postings were successfully defended by invoking the state's anti-SLAPP statute:
Ampex v. Cargle (California Court of Appeal, First District, 2005)
Global Telemedia International Inc. v. Doe 1 aka BUSTEDAGAIN40 (U.S. District Court, Central District of California, 2001)
ComputerXpress v. Jackson (California Court of Appeal, Fourth District, 2001)
In California, once an anti-SLAPP motion (the "special motion to strike") is filed, all discovery is "stayed" or blocked. Thus, the plaintiff's attempts to discover information about your identity must wait until after the court determines whether or not the company's lawsuit has a "probability of success."
The information on this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your specific situation.